Christine Hawken v Geoffrey Ronald Jelbert
| Jurisdiction | England & Wales |
| Judge | Mr. Recorder Leslie Blohm |
| Judgment Date | 03 October 2022 |
| Neutral Citation | [2022] EWHC 2472 (Ch) |
| Docket Number | PT 20202 BRS 000040 |
| Court | Chancery Division |
[2022] EWHC 2472 (Ch)
Mr. Recorder Leslie Blohm KC
PT 20202 BRS 000040
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (Ch. D)
Representation
For the Claimant: Mr John Dickinson (instructed by Stephens Scown LLP Solicitors)
The First Defendant: Appeared in person
The Second Defendant: Did not appear and was not represented
This claim concerns the meaning a gift by clause 3 of the will dated 14 November 2014 of Ronald James Jelbert (‘the deceased’) where he devised:
“…free of tax all my interest in the property known as Ponsandane Meadow Chyandour Penzance Cornwall TR18 3NH as shown for identification purposes on the plan attached shaded red with the right of access at all times and for all purposes therein to Christine Hawken absolutely.”
Ms. Hawken is the claimant. She was the deceased's partner for many years from the mid 1970s until his death on 22 November 2014. She contends that the gift bequeaths to her not only a house within a walled garden, but also an adjacent area used for parking vehicles and rubbish bins, which I shall call the ‘turning and parking area’ and also part of a driveway leading to that area from the public highway. If the bequest does not convey this land, Ms. Hawken contends that the will should be rectified under section 20 Administration of Justice Act 1981 so as to direct such a bequest. In the alternative she says that she is entitled to all of that land by reason of the operation of the doctrine of proprietary estoppel, and further or in the further alternative she claims vehicular rights of access and parking and other service rights over the drive and the parking area. She was represented by Mr. John Dickinson of counsel, instructed by Stephens Scown LLP.
Mr. Geoffrey Jelbert is the deceased's son and one of his four children. In the events which have happened he is entitled to the entirety of the residuary estate of the deceased. He maintains that the bequest, insofar as it conveyed land, related solely to the land falling within the former walled garden. He does not accept that the gift conveyed vehicular rights of access to Ponsandane Meadow, but says he is willing to negotiate such access with Ms. Hawken. Mr. Jelbert represented himself in person before me.
By his last will the deceased appointed his four children, Geoffrey, Roger, and Ernest Jelbert and Georgina Harris as his executors and trustees. By clause 3 he bequeathed the property in dispute to Ms. Hawken in the terms stated above. By clause 4 he gave Ms. Hawken £50,000 free of tax. By clause 5 he gave Ms. Hawken various domestic items. The residuary estate was bequeathed to his four children in equal shares.
Probate of the deceased's estate was granted to Mr. Geoffrey Jelbert on 27 July 2016. Roger Jelbert and Sarah Harris were appointed as executors under a double grant of probate made on 15 January 2017. Mr. Ernest Jelbert was appointed as executor by a further double grant of probate made on 2 August 2017.
Litigation relating to the four siblings' entitlement under the will was settled by a Tomlin Order made by HHJ Cotter QC on 3 September 2018. Under that order and by subsequent agreement with Ernest Jelbert Roger Jelbert and Sarah Harris were removed as executors, and the siblings agreed that Mr. Geoffrey Jelbert became entitled to the entirety of the residue of the estate; he agreed to make payment of an agreed sum to each of his siblings.
In the course of this litigation the court has ordered that Geoffrey and Ernest Jelbert be removed as executors of the deceased's will, and substituted Mr. Patrick Gaskins. Mr. Gaskins has elected not to participate actively in this litigation, but has indicated that he is content to abide by the decision of the court as to the true meaning of the bequest, and to execute the will accordingly.
Much of the background to the claim is common ground. The deceased was the owner of and lived with Ms Hawken in their bungalow at Ponsandane Gardens, Chyandour, which was registered at HM Land Registry under title number CL95115. I understand that in former times this was land that was ancillary to a grand Edwardian House situated opposite across the B3311, Ponsandane House. Prior to 2010 it had two properties on it; Ponsandane Gardens itself which was a bungalow constructed by the deceased, and Little Ponsandane which was a property constructed by the deceased for his mother to live in. On the south of a plot was an historic walled garden, and it is within the confines of this walled garden that the bungalow at Ponsandane Meadow has been built. Access to both properties, Ponsandane Gardens and Little Ponsansdane, was by way of a driveway off of the B3311 at the very north of Ponsandane Gardens, and thus as far from the walled garden as could be.
In recent years the A30 has been improved at Chyandour, and this has involved the construction of the Penzance by-pass, part of which is a flyover that sails over part of Ponsandane Gardens. That flyover is situated just to the north of the walled garden, and the turning and parking area is substantially underneath it and to the north west of the walled garden. Immediately to the north of the walled garden the A30 is embanked and rather higher than the ground level for the walled garden. Once the A30 was constructed, the only way of passing directly between the walled garden and the B3311 was to pass under the A30, and across what is now the turning and parking area.
In 2007 the deceased applied for planning permission for the construction of a bungalow on the walled garden. His intention was to move into this bungalow with Ms. Hawken when it was constructed. Outline planning permission was granted after an appeal in 2008. The deceased then applied for detailed planning permission. That application and the accompanying documentation has loomed large in the Claimant's argument as to the construction of Clause 3 of the will, and it is necessary to refer to the documents in a little detail.
The application incorporates various plans. One is a 1/1250 scale Ordnance Survey plan which showed the site edged in red. That area comprised the walled garden, the turning and parking area and most of the access route which meandered from the parking area around the bungalow Ponsandane Gardens, between that bungalow and Little Ponsandane, before it reached a stub of driveway leading from the B3311. That stub of driveway was not shown edged in red.
This land edged red was drawn over and across the route of the A30. Ponsandane Gardens itself was shown edged in blue, although that edging excluded the land edged in red and insofar as Ponsandane Gardens other than the land edged red was under the A30, that was not edged in blue. Also edged in blue was a parcel of land abutting the walled garden to the west, but this was not part of the registered title. I heard from Mr. Roger Jelbert that this plot, which I understand to have historically been used for growing vegetables, had been part of Ponsandane Gardens, but had been transferred to a company controlled by Mr. Roger Jelbert known as Startmate Ltd. Prior to the death of the deceased he asked Roger if he would transfer this plot to Ms. Hawken, and Roger has in fact done so. This appeared to concern Mr. Geoffrey Jelbert, but it appears to me to be of no relevance to the issue I have to decide. Returning to the planning application, it appears from looking at the plans in their entirety that the deceased intended to construct the turning and parking area under the whole width of the A30 flyover. However the location plan and the block plan only showed it as extending half the width of the A30, from the walled garden.
The application incorporated a 1/200 scale ‘block plan’ which showed the site in plan view. Insofar as it showed the parking area as part of the plan (in the top right hand corner of the plan) it did not show its bottom or western boundary. The reason for that appears to be that the site for planning purposes included the substantial part of the drive which led from the turning and parking area, as is apparent from the location plan, and the 1/500 scale block plan. The block plan also showed the location for the recycling bins being on the turning and parking area.
In respect of the present application the Planning Design and Access Statement stated that
“The driveway and parking facility within the site boundary will enable disabled persons to alight from a vehicle and gain access to the main entrance by a level approach. The surface of the approach will be firm and either brick pavers, paving slabs or other suitable material…”
The Council was concerned that vehicles that accessed the property had space to turn around so that they both left and entered the B3311 going forwards. The deceased's agent amended the plan to the application to reduce the parking spaces to one disabled space and one parking space, thus freeing up other space on the turning and parking area.
Conditional planning permission was granted on 19 July 2010. One of the conditions provided as follows:
“2. The development hereby permitted shall not be used or occupied until areas have been provided within the site for vehicles to be parked and to enable them to enter and leave the site in forward gear in accordance with the approved plan. These areas shall not thereafter be obstructed or used for any purpose other than the parking and turning of vehicles. Reason: To ensure the provision of off-highway parking, in the...
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